Ninth Life: An Interpretive Theory of the Ninth Amendment

Ninth Life:

An Interpretive Theory of the Ninth Amendment

CHASE J. SANDERS*

TABLE OF CONTENTS

760

763

I. INTRODUCTION TO AN INTERPRETIVE THEORY .................

II. THE HISTORY OF THE NINTH AMENDMENT ...................

763

767

769

A. The First ConstitutionalQuandary.......................

B. The Madisonian Resolution ...........................

C. JurisprudentialHistory .............................

III. AN INTERPRETIVE THEORY OF THE NINTH AMENDMENT

773

........

A. The Ninth Amendment as Guardian of Unenumerated Rights

1. A Review of the Incorporation Question and the

Incorporation of the Ninth Amendment ................

2. Rights, Powers, and the Ninth Amendment's

Constitutional Role .............................

"3. The Case for Judicial Recognition of Ninth

Amendment Rights .............................

a. The Meaningless Ninth Amendment Defense .........

b. The Judicial Unenforceability Defense ..............

c. The Alternative Reference Defense .................

d. The Rule of Construction Defense ................

4. Conclusion ....................................

B. The Nature of Ninth Amendment Rights ..................

1. The (Troublesome) Question of Natural Law .............

2. Ninth Amendment Rights as Defined by Lack of

Substantive Harm ..............................

3. Conclusion ....................................

C. Conclusion ......................................

...

773

774

781

788

791

792

794

796

799

799

800

806

816

817

IV. APPLICATIONS .....................................

818

A. Sexual Expression and Autonomy ........................

B. ProcreativeChoice ................................

C. Pornographyand Obscenity ...........................

D. Other (Possible) FirstAmendment Misfits .................

E. MiscellaneousNinth Amendment Candidates................

F. A FinalNote on Two Important Special Cases ..............

G. Conclusion ......................................

V. CONCLUSION ......................................

VI. EPILOGUE ........................................

818

823

826

831

834

837

839

839

842

t ? Copyright 1994 by Chase J. Sanders. All rights reserved.

* Associate, Piper & Marbury, Baltimore, Maryland. J.D., Harvard University, 1992; M.P.P.,

Harvard University, 1992; B.A., University of Virginia, 1988.

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The enumeration in the Constitution, of certain rights, shall not be

construed to deny or disparage others retained by the people.

UNITED STATES CONSTITUTION

AMENDMENT IX

I. INTRODUCTION TO AN INTERPRETIVE THEORY

In 1986, in Bowers v. Hardwick,' the Supreme Court upheld a Georgia

statute criminalizing sodomy, thereby declining to recognize a fundamental

constitutional right to engage in homosexual sex. Announcing that the right

of privacy, recognized in earlier decisions involving procreative freedom, did

not extend to homosexual activity, the Court disparaged sodomy as far less

important than the "fundamental individual right to decide whether or not to

beget or bear a child."' 2 The Court, in short, proclaimed that sex for homosexuals is constitutionally less important than sex for heterosexuals.

In 1990, in Cruzan v. Director,Missouri Department of Health,3 the Court

did recognize a fundamental constitutional "right to die," that is, to have life

support systems disconnected under certain circumstances. The Court,

however, analyzed the right not as a matter of privacy but as one of liberty.

Citing its decision in Bowers to construe privacy narrowly, the Court quietly

observed in a footnote: "We believe that [the right to refuse treatment] is

more properly analyzed in terms of a Fourteenth Amendment liberty

interest."4 Thus, in the space of just four years, the Supreme Court closed the

privacy door on a right it disdained-homosexual sodomy-only to find itself

forced to open a liberty window for a right it preferred-the right to die.

What the Court could

no longer do with "privacy" after Bowers, it chose to

5

do with "liberty."

These cases demonstrate how a significant portion of American constitutional rights jurisprudence has stagnated. As the contrast between Bowers and

Cruzan illustrates, the Supreme Court continues to fumble for a coherent

method of analyzing rights claims which appear strong, but which are not

readily pigeonholed into specific constitutional provisions-so-called

unenumerated rights. If, hypothetically, a state made it a crime to walk down

the street, the Court would surely strike down the law as unconstitutional; but

whether it would do so as a matter of privacy, liberty, or some other means

is difficult to predict. All that can be said with certainty is that the Court

would grope its way to the conclusion that the right to walk down the street

is "fundamental," and is therefore constitutionally protected.

1. Bowers, 478 U.S. 186 (1986).

2. Id. at 190 (citation omitted).

3. Cruzan, 497 U.S. 261 (1990).

4. Id. at 279 n.7 (citation omitted).

5. Recognition of this interesting contrast between Bowers and Cruzan is owed to Martha Field.

Professor Martha Field, Lecture at Harvard Law School (Oct. 11, 1991).

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NINTH LIFE

Indeed, "fundamentality" seems to be the one consistency in the Court's

unenumerated rights jurisprudence. If the Court can deduce that an asserted

right is "fundamental," it will protect that right, one way or another.

Unfortunately, no one can identify the adhesive by which the fundamentality

label sticks to certain rights and not others. What is clear is that the adhesive

is fickle; for fear of diluting the "fundamentality" concept, the Court applies

it sparingly. For every new right it recognizes, like the right to die, the Court

rejects others, like homosexual sex. Thus unenumerated rights jurisprudence

has stagnated at a relatively fixed bundle of rights. The New York law firm

method of evaluating unenumerated rights continues-for every new right

accepted as a full partner in the constitutional constellation, others are

dismissed lest the partnership grow too fast and collapse under its own

generosity.

This Article explores a largely unexplored constitutional provision which

may significantly inform the current stagnation enveloping unenumerated

rights. The Ninth Amendment to the Federal Constitution provides: "The

enumeration in the Constitution, of certain rights, shall not be construed to

deny or disparage others retained by the people." The text seems straightforward: the Constitution contemplates other rights besides those specifically

listed in the first eight amendments and elsewhere. The Ninth Amendment, in

other words, appears to speak to unenumerated rights. But for two centuries

now the Ninth Amendment has played a negligible role in rights jurisprudence. Until 1965, only about ten Supreme Court decisions had even

mentioned the Ninth Amendment, and no case has ever relied on the

Amendment as an exclusive or even primary rule of decision.

There seems to be but one simple reason underlying the Ninth Amendment's

neglect: it appears incapable of practical interpretation. No one has yet

discovered a mechanism for empowering courts to identify the "other[]

[rights] retained by the people" that does not dramatically swell the judiciary's head on the three-headed hydra of American government. So the courts

have ignored the Ninth Amendment altogether. They have treated it as though

it does not envision judicial protection for unenumerated rights at all, a notion

which has gained credence through the inertia of its neglect. Sub silentio, the

courts have gradually instilled the idea that there is, in fact, no such thing as

Ninth Amendment rights. Predictably, this historical neglect of the Ninth

Amendment has taken its toll, as the Amendment currently finds its credibility

as a legitimate constitutional entity woefully damaged. As John Hart Ely

writes, "[i]n sophisticated legal circles mentioning the Ninth Amendment is

a surefire way to get a laugh." 6

This Article braves the laughter, or at least the widespread skepticism

surrounding the Ninth Amendment, out of a conviction that a constitutional

provision should not be ignored simply because it is hard to interpret. This

Article is devoted to the idea that the Ninth Amendment must mean

something. As the very first Ninth Amendment thinker wrote, "[i]t must be

6. JoHN H. ELY, DEMOCRACY AND DIsTRusT 34 (1980).

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more than a mere net to catch fish in supposedly fishless water."'7 This

Article therefore assumes the task of positing an interpretive theory of the

Ninth Amendment. Specifically, this work will defend the following thesis:

The Ninth Amendment protects the right to engage in, and prevents governmental encroachment into, any activity orpractice which entails no possibility

of harm to either the actor or other people. Only the significantpossibility of

tangible physical or economic harm, not "harm" in the form of public

disapprovalor moral offense, can justify governmental intrusion under the

Ninth Amendment.

The Article supports this thesis as follows: Part II traces the history of the

Ninth Amendment, both its enactment and its jurisprudential history. This

historical study has two objectives. First, it describes the Ninth Amendment's

evolution in requisite detail (but no further) to reveal the clues which history

offers for Ninth Amendment interpretation. Second, it provides this historical

account objectively, so that critics might point out any contrary implications

of the account.

Part III then relies on Part II to develop the actual thesis of the Article, the

interpretive theory of the Ninth Amendment mentioned above. It does so in

two sections. The first argues that the Framers intended the Ninth Amendment

to command judicial protection for unenumerated constitutional rights. The

second then derives the mechanism for identifying those rights. In addition to

the history in Part II, both sections rely on other, more specific building

blocks which are developed prior to the primary analysis in each section.

Part IV discusses how the interpretive theory of the Ninth Amendment

constructed in Part III should apply in practice to certain selected areas of

rights jurisprudence. Although, as it turns out, "Ninth Amendment rights" are

actually a broad hodgepodge of largely unrelated liberties, Part IV focuses on

a few specific and coherent areas of jurisprudence in order to magnify how

and when the Ninth Arnendment should, and should not, apply.

Part V concludes. Part VI, an epilogue, wonders how the Ninth Amendment

theory advanced herein, if accepted, would mesh with or reorganize current

rights jurisprudence. It grapples, in particular, with the Ninth Amendment's

compatibility with the concept of substantive due process.

Ely writes that "[i]f a principled approach to judicial enforcement of the

Constitution's open-ended provisions cannot be developed, one that is not

hopelessly inconsistent with our nation's commitment to representative

democracy, responsible commentators must consider seriously the possibility

that courts simply should stay away from them."8 Many responsible commentators, and the courts, have apparently abandoned all attempts to develop a

workable theory of Ninth Amendment interpretation, preferring instead to

dismiss its open-endedness as incompatible with disciplined judicial review.

But perhaps they have taken Ely's advice prematurely. The Ninth Amendment

7. Knowlton H. Kelsey, The Ninth Amendment of the FederalConstitution, 11 IND. L.J. 309, 323

(1936). Kelsey's article is the first devoted exclusively to the Ninth Amendment.

8. ELY, supra note 6, at 41.

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NINTH LIFE

is, after all, part of the Constitution. Before throwing in the towel on its

consistency with the American philosophy of government, we should make

another attempt at reconciliation. This Article tries to do just that. This Article

seeks Ninth life.

II. THE HISTORY OF THE NINTH AMENDMENT

Though conceived in the fertile womb of James Madison's mind-the same

womb which produced many of the Constitution's'most vibrant phrases-the

Ninth Amendment was practically stillborn. It was a mere footnote to a

compromise in a debate, a footnote which all agreed was obvious and which

many thought redundant. But if this seems an inauspicious beginning for a

clause portending broad implications for constitutional jurisprudence, the

magnitude of both the compromise and the debate removes the apparent irony.

The debate was the first great constitutional dispute; the compromise was

none other than the Bill of Rights itself.

A. The First Constitutional Quandary

The hot summer's work of 1787 was drawing to a close when, on

September 12, George Mason of Virginia stood up to propose to the

Constitutional Convention in Philadelphia an idea which had theretofore been

unmentioned: that a bill of rights be added to the nearly complete Constitution.9 Elbridge Gerry of Massachusetts supported the idea and moved to have

a committee prepare such a document, but the Convention overwhelmingly

rejected the motion.'0 Various other delegates made similar attempts over the

remaining three days of the Convention, all to no avail, and on September 15,

1787, the great Philadelphia Convention unanimously agreed to an unamended, proposed Constitution of the United States." The Framers were exhausted but satisfied; only ratification by the states impeded the official formation

of a Federal American Government.

Instead of fading, the debate over whether to include a bill of rights began

in earnest in the state ratification conventions. The glaring absence of a bill

of rights was attacked in nearly every state's convention and quickly emerged

as the most formidable obstacle to ratification. 2 Many Anti-Federalists 3

9.2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 587 (Max Farrand ed., rev. ed. 1966

& Supp. 1987).

10. Id. at 588.

11. Id. at 604-40.

12. See generally THE DEBATES IN THE SEVERAL STATE CONVENTIONS, ON THE ADOPTION OF THE

FEDERAL CONSTITUION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA IN 1789

(Jonathon Elliot ed., 2d ed. 1836) [hereinafter Elliot's DEBATES].

13. While this is the name generally attributed to those Framers who opposed a strong central

government, it is used here as shorthand for those opposed to the Constitution, since the Constitution

provided for a much stronger central government than the failed Articles of Confederation. The term

"Federalists" is likewise employed here in the narrow sense of those who favored ratification. The

literalist will recognize that the names are ironic; since "federalism" connotes the division of power

between units, a true "Federalist" would actually favor a weaker central government and an "Anti-

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